Is Probate Necessary?

What is Probate?

Most people have heard of probate, but few people really know what it is. Probate is the process by which a court (which in New York will be the Surrogate’s Court) confirms that a Last Will and Testament has been executed in accordance with the law and is valid to affect how property will pass after death. Which brings us to the second thing most people aren’t aware of: that a Will has to be probated for it to take effect.

What does Probate entail?

In New York, as a general rule, if an individual owns property in his or her name at the time of death, a proceeding must be commenced in court to probate the Will. Contrary to many people’s understanding, this proceeding is costly and can take considerable time to complete. Initially, the executor nominated in the Will must retain counsel to petition the court to formally be appointed himself or herself as the executor. This preliminary process alone can be time-consuming. The process can be made faster if the nominated executor obtains consents and waivers from all the other heirs and beneficiaries. The petition must also include the decedent’s death certificate, an original paid funeral bill, and the filing fee specified by the Surrogate’s Court. Once the court has formally appointed the executor, a certificate called “Letters Testamentary” is issued. Then, and only then, can the executor do anything with the decedent’s property – whether real property or personal property. The executor must then obtain a tax ID number for the Estate and open an account(s) in the Estate’s name. Assets can then be transferred into the Estate account.  Once the assets are marshaled (collected), the executor may then pay the bills of the Estate and distribute the assets to the beneficiaries. The Estate should be kept open and some funds held in reserve for seven months to allow for creditors to file claims.When distributing assets to beneficiaries, the executor should prepare an accounting and present it to the beneficiaries together with receipts and releases to be executed by the beneficiaries in conjunction with the distributions.  (Note that this is a summarization, and all of these steps should be taken with the guidance and assistance of counsel.)

How about if there is no Will?

When an individual dies without a Will, a similar procedure is necessary. This proceeding is called an Administration Proceeding. A significant difference in this situation is that the beneficiaries (called “distributees” in New York and commonly referred to as “heirs” everywhere else) of the decedent are determined by the state’s intestacy statute.

Common misunderstandings

Over the years, I’ve found that clients are surprised by a couple things: One thing I’ve heard often is that many clients believe that if there is a Will, no court proceeding is needed. As set forth above, that is incorrect. The second surprise is the way in which the assets are distributed under the intestacy statute. For example, assume a family consisting of two parents and two minor children. In NY, if Dad dies without a will, the family might have expected everything to go to Mom.  In fact, half of the assets plus $50,000 will go to Mom. The rest will go to the children. This is what we call an unanticipated result, and it could be an unwanted result if, for example, real property passes to minor children.

Frequently Asked Questions About Probate

Very few people have much experience with the probate process, so confusion is common. Here are the answers to some of the most common questions we hear from our clients:

Can probate be avoided, and if so, how?

Frequently, yes, so long as there is careful estate planning. The selective use of diverse tools, whenever appropriate, such as revocable living trusts, irrevocable trusts, lifetime gifts, direct beneficiary designations, transfer-on-death deeds and more, can reduce or eliminate the need for probate.

Also, if the value of an estate is below a certain threshold, it may qualify for a faster, simplified version of probate that avoids long wait times.

What happens if someone dies without a will?

When someone dies without a valid will, it is referred to as dying “intestate.” Intestacy creates difficulties during the probate process, making it harder for loved ones to gain their inheritance.

The probate court cannot follow the decedent’s last wishes without a will, including naming an executor of their estate. As a result, the probate court must appoint an administrator to be responsible for handling the estate and ultimately distributing the decedent’s assets to their heirs. This typically means that the deceased’s assets will be frozen until the court-appointed administrator is done reviewing the estate.

In addition, the court will then be obligated to follow the state’s intestacy laws regarding how the deceased’s remaining assets will be distributed – including what may be highly personal and sentimental items. That may not reflect the deceased’s stated wishes in any way.

Attorney guidance becomes even more critical for families seeking to resolve probate issues whenever a loved one passes away without a will.

How are debts and taxes handled during probate?

During the probate process, creditors are allowed to file claims to pay unresolved debts using the decedent’s assets. The executor may also be responsible for filing a final tax return and using the estate to pay off any taxes owed. Once any remaining debts and taxes are resolved, the remaining assets are distributed to beneficiaries.

What are the costs associated with probate?

Probate can cost a small portion of the estate’s total value. Some of the most common costs associated with probate include court fees, executor fees, appraisal fees, debts, taxes and accounting fees. Our attorneys at the NY Elder Law Group can help you determine the total cost of filing for probate and identify ways to lower costs.

How can an executor be appointed for someone’s estate?

If there is a valid will and the deceased named someone as their executor, the Surrogate’s Court will generally confirm their appointment and issue “Letters Testamentary,” granting them the official ability to act on behalf of the estate.

However, there are a few requirements that must be met before the executor can be appointed, including the following:

• The executor must be at least 18 years of age.
• The executor must not be incapacitated.
• The executor must either be a U.S. citizen or a noncitizen residing within the state.
• The executor must be proficient in English.
• The executor must not have a felony conviction.

If an executor cannot serve the estate, is not named in the will, or the will is invalid, then the court will appoint an “administrator” instead to perform the same function.

What are the duties of an executor or personal representative?

Serving as an executor in New York carries real responsibility. The court expects careful record keeping, honest handling of money and steady communication with heirs. As such, the duties of an executor or personal representative include:

• Gathering and protecting assets: This means locating accounts, property and valuables so nothing is lost or misused.
• Paying debts and taxes: Valid bills must be settled before heirs receive anything from the estate.
• Filing required court papers: Probate filings keep the Surrogate’s Court informed and the process moving forward.
• Updating beneficiaries regularly: Clear communication helps prevent confusion, tension or later legal conflict.

When these duties are carried out thoughtfully, the process tends to move more smoothly for everyone involved.

How is property distributed if there is no will?

When someone dies without a will, New York intestacy law decides who inherits. The rules are strict because the state treats estate transfer seriously.

Family structure matters, and the outcome may differ from what the person intended:

• Spouse but no children: The surviving spouse generally receives the entire estate.
• Spouse and children: The spouse receives the first $50,000, plus half of the balance, while the remaining amount goes to the children.
• Children but no spouse: Assets are usually divided evenly among the children.
• No close relatives: Property may pass to extended family under a set legal order.

Intestacy law leaves little room for personal wishes once someone passes. Planning ahead usually provides more control over how property is eventually shared.

Are there any deadlines or time limits in the probate process?

New York does not impose one fixed deadline to start probate, yet delays often create complications. Creditors typically have about seven months after an executor is appointed to file claims.

If the estate tax applies, returns are often due within nine months of death. Courts also expect timely filings and responsible progress.

Waiting too long can make locating records harder and may raise questions from the court. Missing time frames can lead to penalties, disputes or longer court supervision.

What happens if there are disputes among heirs during probate?

A probate dispute can severely delay the probate process and possibly impact the management and distribution of the estate. Common disputes that may ultimately lead to litigation include challenges to the will by unhappy beneficiaries or expectant heirs based on allegations of undue influence and lack of testamentary capacity or allegations of fiduciary misconduct or mismanagement of the estate by a fiduciary.

Sometimes, swift intervention by an attorney and skilled negotiations can de-escalate a dispute and lead to a resolution without litigation and unnecessary delays.

Can a will be contested during the probate process?

Yes, but the window of opportunity for a dispute is very short, and any contest of the will requires sufficient legal reasoning or “grounds.” In addition, the person contesting the will must have the legal standing (usually meaning that they are a beneficiary or heir) to make such a contest.

If you think that you may wish to contest a will, it is critical to seek legal guidance from an experienced attorney as quickly as possible. Any delay could be fatal to your suit.

Best way to control what happens: Do a Will

The important thing to take away from this summary is that it is wise to do a Will. See further articles for discussions on how to hold assets and how to possibly avoid the need to go to court at all.